Scottish Court of Session Decisions

At advising on 13th December 1940,—

LORD JUSTICE-CLERK (Aitchison).—In March 1937 the pursuers, who are farmers at Bonnyrigg, Midlothian, entered into a contract of sale as buyers with the defenders Miln & Company, who are seed merchants in Chester. The contract was a verbal one. It was negotiated between Mr Rutherford, the sole partner of the pursuers' firm, and Mr Harries, who was a representative of the defenders in Scotland. Mr Rutherford made known to Mr Harries that he desired to purchase two separate parcels of savoy seed each of two pounds, under their trade names of Grenadier and Ormskirk Savoy Seed with a view to marketing the crop in Glasgow the following spring. The order was accepted and executed, and the seed arrived at the pursuers' farm and was immediately sown. The invoice showing the transaction was not received until the seed was in the ground. The invoice describes the seed despatched as follows:—

The invoice goes on—"Subject to the undermentioned conditions.… Messrs Miln & Company take the greatest care in the growing, selection and cleaning of all seeds and seed potatoes they supply, but give no warranty, expressed or implied, as to description, quality, productiveness or any other matter connected with seeds or seed potatoes supplied by them, beyond analyses required in accordance with the Seeds Act, 1920, and Regulations made thereunder, nor will they in any way be responsible for the crop. It must therefore be clearly understood that, if the purchaser does not accept the goods hereby invoiced on these terms, they are at once to be returned."

The case for the pursuers is that the seed was disconform to contract, that it was not of the description ordered, and that it failed to produce a marketable crop. They claim damages estimated at £600 for the loss arising from the breach of contract. The defenders' case is that the failure of the crop was due to a number of circumstances, and in particular to late planting, bad cultivation, and an unfavourable season for the production of winter cabbage. In any event, they plead the exclusion of warranty clause above quoted, which I shall afterwards refer to as the "no warranty" clause. The Lord Ordinary has sustained this last plea and assoilzied the defenders.

A preliminary question was raised by the pursuers as to whether the no warranty clause was incorporated into the contract. The invoice containing the clause did not arrive until after the seed had been received and sown by the pursuers. I should have been in favour of sustaining their contention that the no warranty clause was not incorporated into the contract, but for the evidence given by Mr Rutherford himself. He admitted that he was aware when placing the order that it was an order on the usual terms of business, that is, the defenders' usual terms. In his evidence there occurs this passage—"By the Court—(Q.) Did you therefore know at the time when the invoice was sent that there were conditions attached to the sale of the cabbage seed? (A.) Yes, if it is attached to the invoice." "Cross continued—(Q.) Do the usual forms of invoice from seedsmen contain conditions attached to them? (A.) Yes. (Q.) And every farmer knows that, although he does not perhaps pay much attention? (A.) That is so." In an earlier passage Mr Rutherford admitted that, when he gave his order to Mr Harries, he knew he was giving the order on Messrs Miln's usual terms of business. In view of that evidence the pursuers can scarcely be heard to say that they were not buying on the ordinary trade terms and conditions upon which seed merchants sell.

As already stated, the seed was immediately sown. It yielded a completely unmarketable crop. I reject as unproved the suggestions of the defenders that the failure of the crop was due to the causes alleged by them, namely, late planting, bad cultivation and unseasonable weather, or any one of these causes. No purpose would be served by examining in detail the evidence upon this branch of the case. I agree with the Lord Ordinary's conclusion. I cannot find any substantial evidence to show that there was any failure of proper planting or proper cultivation, or that the weather, assuming an unfavourable season, which seems to be generally agreed on, would be sufficient to account for the failure of the crop. None of these things, taken conjunctly or severally, would account for the seed supplied growing cabbages when it should have grown savoys. The Lord Ordinary's positive conclusion is that the crop failed because the seed supplied did not answer description. He says:—

"I am satisfied that the crop did not consist of true savoys. I think it was a mixture of savoy, cabbage and hybrids,"

and later on he says:—

"On the whole matter I hold that the seed did not produce a crop of savoys, that this was not due to the delay in planting the crop, the failure to hoe or work up the crop, or to the weather of the season 1937-38."

The Lord Ordinary does not attempt to state in a percentage the extent to which the crop did not consist of true savoys. It is agreed that the crop was useless and incapable of being marketed, and it was fed to sheep. I accept the Lord Ordinary's view, which need not be elaborated, that what came up from the seed consisted mainly of cabbages and hybrids, and not savoy cabbages, which the defenders had contracted to supply. There was thus a material breach of contract, and but for the no warranty clause there would be no answer to the pursuers' claim for damages. I am satisfied that the Lord Ordinary's conclusion as to the character of the crop has not been displaced by the defenders.

There remains, therefore, one question, namely, whether the defenders can avail themselves of the protection of the no warranty clause. A preliminary point was taken that the clause, falling to be strictly construed, applied only to seed grown, selected and cleaned by the defenders themselves, and not to seed purchased by the defenders from an undisclosed source. In my view this is too narrow a construction. I read the clause as saying that the defenders give no warranty as to description, quality or productiveness or any other matter in relation to all seed supplied by them. I think the no warranty clause can mean nothing else. If then the clause applies to all seed supplied by the defenders, the case is in my opinion completely covered by the case of Smith & Son v. Waite, Nash & Company .

In that case a firm of seedsmen offered to take from a firm of wholesale merchants 100 bushels of "Old Meldrum Green top Yellow Turnip Seed" if "of a really reliable stock." The merchants accepted the offer, and the paper on which the acceptance was written contained these words—"Terms of sale—Messrs W. N. & Co. give no warranty express or implied as to description quality productiveness or any other matter of any seeds they send out and they will not be in any way responsible for the crop. If the purchaser does not accept the goods on these terms they are at once to be returned." The no warranty clause therefore was in the same terms as in the present case except that in this invoice there is the statement as to the care in the growing, selection and cleaning of the seed. The seed furnished turned out to be a mixture of Old Meldrum seed and that of another turnip, the two varieties of seed being indistinguishable. In consequence of this mixture the crop failed. It was held by the First Division, reversing Lord M'Laren, that the no warranty clause was effectual to protect the sellers against the buyers' claim for damages. In the course of his judgment Lord M'Laren stated the question as being to find out whether the difference between the goods ordered and the goods supplied would amount to an error of mere description, or to an error in substance, such as the supply of one article in place of another. Upon the evidence he held that the Tankard turnip is from the farmer's point of view a thing specifically distinct from the Scotch green top yellow in certain particulars, and that to give the one for the other was not a mere error of description but a failure to comply with the contract of sale. Upon this footing he awarded damages. In the Inner House Lord Adam referring to Lord M'Laren's opinion said (at p. 539)—"To say that one turnip is specifically distinct from another, appears to me to be just saying, in a different form of words, that they are not the same description of turnip—which is just the case provided for by the Terms of Sale." Lord Kinnear

said (at p. 539)—"The whole argument for the pursuers may be summed up in one sentence, viz.,—that the defenders have not performed their part of the contract, as they have delivered seed of a different description from that bargained for. That argument would be unanswerable were it not for the stipulation which, I agree with Lord Adam, was specially designed and is fitted to meet the case. The stipulation comes to this, that while the defenders agreed to deliver ‘Old Meldrum’ turnip seed, they did not guarantee the seed they delivered to be Old Meldrum seed, and, if it turned out not to be seed of that description, they would not be in any way responsible for the mistake. I think that stipulation affords an answer to the pursuers' claim." Lord President Inglis was of the same opinion. After pointing out that the defenders had delivered a different article from what they agreed to sell, and to that extent were in breach of contract, he went on to deal with the meaning of the word "description" in the no warranty clause. He said (at p. 539) "No doubt that word is susceptible of various meanings. In many cases it means a detailed description as to form, colour, &c., of the article sold—but it is also often used as equivalent to kind or species. Now, it is in that sense, I think, that it is used here. In mercantile contracts of this kind there is no description of the article sold except that contained in the order."

I can see no answer to this reasoning. If the view of the Lord President is right that description in a clause of this sort means kind or species, then that is exactly this case, and the defenders are entitled to the protection of the clause, and the pursuers cannot recover damages for the failure of the defenders to deliver seed of the description contracted for. There might of course be a case of so complete a disconformity, as, for example, if turnip seed had been supplied in place of cabbage seed, that it could be said that the disconformity went beyond a mere failure in description. But in the present case I think we are in the region of a mere difference in variety, and it was against a difference of kind in that sense that the immunity clause was intended to protect. The case may involve some hardship on the pursuers, because they have lost a marketable crop; on the other hand the necessity of seed merchants protecting themselves against accidents of the kind, which may arise from cross fertilisation of plants which cannot be altogether excluded, is sufficiently apparent. Upon the whole matter, therefore, I agree with the Lord Ordinary's judgment and am for affirming it.

LORD MACKAY .—This, it must not be forgotten, is an action for damages, and for damages of considerable amount, arising from an alleged breach of a contract of sale. The reclaimers, who are the pursuers of the damages action, were unsuccessful after proof before the Lord Ordinary. Their argument, and the reply thereto, ranged over ground a good deal wider than apparently was argued to the Lord Ordinary, who, upon the question which he thought vital, followed, and indeed felt himself bound by, a case decided by the First Division in the year 1888, i.e., Smith & Son v. Waite, Nash & Co ., which I shall hereafter call Smith v. Waite . One or two preliminary observations will, I think, clear much of the ground. First, the case was argued very largely, if not entirely, without reference to the changed law and the statutory provisions of the Sale of Goods Act, 1893. In my judgment, that Act produced a very material revolution in the law of sale in Scotland, which must be carefully and scrupulously observed; while, at the same time, it must equally be observed that it did not equate the law of Scotland to that of England in all respects, and it is not now equated. Secondly, the argument and the consideration given to the proof were both divided too much into an argument directed to the law of the question, and on the other hand an argument, called the argument "on the facts." Now, my observation is that, in every case—at any rate since 1893—of damages for wrong delivery of a subject which has been accepted, and has been dealt with by the buyer in such manner that it is no longer open to him to reject and proffer back the goods, the first question—and a question as much upon the merits or "the facts" as the other—is the question, "What was the contract, and what was the intention of the parties" (i.e., the intention common to both parties) "upon which the whole matter proceeded?" Quite as much of the proof is related to that proper and first question as concerns the question of the alleged deficiency of the product which came up from the seeds. I shall therefore, in the sequel, commence with the question of what the contract was: it is quite possible that it may preclude the exact determination of the later question. Thirdly, since it is conducive to proper consideration to make some assumption as to the general character of the breach alleged, I shall assume, broadly, that whereas the order was for Ormskirk Savoy cabbage seed, and was fulfilled about March 1937, the crop, when it was fully disclosed above ground, about the December or January thereafter, might be described as a crop perhaps 10 or 15 per cent true savoy cabbages, and the rest composed, in unspecified proportions, of bastard savoy cabbages and other types or species which could not even be described as hybrids or bastards.

Undoubtedly, the first question on which nearly everything turns is, "What was the character of the contract; and what conditions, protective and otherwise (if any), were incorporated with it?" The first question of all, seeing that the defenders are a company described as carrying on business in Chester, England, and the pursuers are farmers at Bonnyrigg, Midlothian, Scotland, is as to the system of law which is to be used throughout as "the Law of the Contract." I have no doubt whatever that, had this question been persevered in, the proper decision was that the law, and the only law, to be applied was that of the forum, namely, the law of sale as known in Scotland. The Dean of Faculty gave his considerations therefor,

which were sound. We heard no argument against his considerations. But the question is foreclosed, because, having been taken, and at one stage argued, before one of the Lords Ordinary, it was thereafter abandoned, and the plea apposite to a foreign law was by consent struck out. In my judgment, in these circumstances it is wholly inapposite to listen to a very limited suggestion which came from the Bar, that in one aspect the meaning of warranty as more rigidly construed in England should be held to have a bearing.

So much for that question. The next step depends on two sets of facts about which I think there is no substantial dispute. The pursuers' principal, Rutherford, and one Harries, travelling agent for the Chester firm, had met in Glasgow, when no contract or even offer was made but only an approach as to whether a certain seed might be "procured" from Lancashire "as our firm was in that district." I think the word "procure" here is of considerable importance in the sequel. But the next and more contractual meeting was at Dalhousie Chesters, the pursuers' farm in Midlothian. Harries, who is a pursuers’ witness, says:

"The order was then given."

And it was an order for two varieties of cabbage; for his words are—"(Q.) He asked you if you could supply the seed for a type of cabbage … Messrs Miln found they could give you it. Is that right? (A.) Yes, and he immediately ordered the two varieties, two pounds of each. (Q.) Did you offer him two different varieties? (A.) Messrs Miln advised him to try that." It is true that between these last two stages there must have been a reference to Chester, but apparently from the other evidence that was done simply by Harries sending by post, in some unspecified way, this inquiry, and Messrs Miln informing him that the order was accepted. I quote one other sentence from Harries, the pursuers' witness. "(Q.) Accordingly what you did was to book orders which were subsequently accepted or rejected by Messrs Miln & Company? (A.) Yes, book orders for them." He also says, "Generally you would not do anything about it. Then they would execute the order? (A.) Yes, that is right." And lastly, after endeavouring to say there was something "special" about this order, he goes on thus:—

"(Q.) So the only speciality really was that because of the special seeds you actually went back to Mr Rutherford and said, ‘The firm can supply you with these seeds’? (A.) Yes."

Now, so far, that is the truth about the contract, except that, curiously enough, Harries does not, at any actual passage in his long evidence, give the description under which he said that two different varieties of types of cabbage were suggested, offered and accepted. For that, we must go to the record, and more particularly to the invoices. There really is no possibility of doubt whatever that the two varieties of types of cabbage seed were correctly set out in the invoice. The invoice of date 30th March 1937 specified "Lbs. 2 MILNS Grenadier Savoy Seed" and "Lbs. 2 MILNS Ormskirk Savoy Cabbage Seed." I have referred, in the verbal proceedings towards sale, to the words "type and variety," and the word "cabbage." That word "cabbage" also occurs in the description of the second parcel of 2 lbs. It is true that it does not occur in the first, that parcel being called "Savoy Seed." Looking to the evidence of Harries for the pursuers and to the general evidence in the case, I have no hesitation whatsoever in saying that the farmer and the travelling salesman who negotiated this were not aware of any difference whatever, material to this case, between the two packages of two pounds apiece. I shall leave for further consideration the argument which bulked most largely in Mr Calver's address to us—namely, that "cabbages are one thing, and that Savoys are another," and different both commercially and botanically from any form of cabbage. I merely point to the inevitable conclusion from the facts stated.

But the next question is just as important: it is whether the farmer in Scotland did or did not accept these seeds when they reached his farm about the 24th of March and when the invoice arrived there about the 31st of March, with the legal appendage of the printed conditions of sale referred to on record. I am of opinion, with the Lord Ordinary, that there is no rational alternative to accepting the view that these printed conditions stood part of the contract. There might have been some room for acute controversy on this question, had the pursuers taken their stand upon the ground that there was a short interval of time between the despatch of the goods and the despatch of the invoice for the goods. On that question, if it had been argued, I think that the case of Williamson, among the ticket cases, does go that length, but might require further consideration. In that case, a man was received on to a packet boat, and was not asked to pay or accept any ticket for vouching his journey, or its conditions, until some hours after the boat and he were at sea. The Court do seem to say that the date makes little or no difference, because he did ultimately accept the ticket. So here, the pursuers accepted the invoice, and said nothing to repudiate the printed conditions sent in both cases, but which we find only appended in one document to the principal matters in the invoice. But, as I have said, that question was not agitated either in the Outer House or here. The question was taken upon Rutherford's evidence that he did not read this long printed condition then, or at any time. In my judgment, looking to the whole of his evidence, the point was not legitimate for the pleader. The evidence of Rutherford as a whole is such as has often, in my opinion, led to parties being faced with printed conditions which they credibly said they never saw or read. The most recent of these cases is the case of Hood v. Anchor Line 1918 SC (HL) 143. I was of counsel there. Mr Hood, who was severely injured on being slung out of a stranded liner, was believed when he alleged that he had never seen or known of a condition limiting his damage to a trifling sum of £10. He had, in fact, sent a servant to the shipping company's offices, and they had enclosed the ticket in question in

an envelope. The envelope was handed over to Hood, and remained in his bureau in his bedroom till he put it in his pocket-book. He never read the condition. The condition was inside, and the only reference to that condition was a reference in black type on the outside of the envelope—"See Conditions Within." The House of Lords said, however hard the result, that Hood had accepted the unread condition limiting his damage to £10.

[His Lordship then referred to several passages in the evidence and continued]—After these clear admissions in answer, I am not able upon the authorities, or without the authorities, to reach, with the reclaimers, the conclusion that the farmer can possibly be held by his negligence and inattention to have escaped the inevitable consequences of accepting the usual conditions of seedsmen, and in particular the usual conditions of Messrs Miln, whom he approached for a particular variety of cabbage.

So much, then, for the contract. I think the Lord Ordinary was not merely right, but that he was bound to reach the conclusion, which I have set out in perhaps a little more detail, as to what the contract contained. There still remain before we reach any question whatever as to the alleged faulty fulfilment of the contract questions of law as to its meaning and construction. The answer to some of them is so simple that, if they had not been partially argued, I would not have troubled your Lordships with them. The first is this:—That, in these circumstances, there was no sale of specific subjects or ascertained subjects, but inevitably a sale by description. Mr Benjamin on Sale, (7th ed.), has a considerable passage at p. 250 as to what is meant by a sale by description, and he gives a very large number of instances. But in the end his exposition really comes to this—that, wherever matters are contracted de futuro and there is no inspection of ascertained goods, nor any sample submitted, the sale must be one by description within the meaning of the Sale of Goods Act, 1893,section 13. I have no doubt that the present was a sale by description, the two descriptions being those correctly reported in the single invoice.

The next point, really more definitely deserving of care, is as to the meaning and effect of the protective clause which I have held to be part of the contract. We can, of course, look at, and have looked at, No. 15 of process itself. The conditions are set out underneath the description of the parcels in very readable print. It is important to notice that the heading is in these terms:—

"Subject to the undermentioned conditions."

What, and how many, are these conditions? It seems to me they are clearly five in number. That "sacks and bags should be free" is a condition of sale accepted by the pursuers. "Gross for nett" is probably another, understood by sellers and buyers. "Only our official receipt recognised," is another condition. Passing over the crucial one, the statement as to a test in accordance with the Seeds Act of 1920 and "Germination and Analytical Purity"

is a statement which is a condition of sale no doubt in favour of the purchaser. The fourth of these five then stands among other conditions, and has been cited by your Lordship. I have no doubt on the question of construction argued. The main purpose of the condition is to assert what may be in a sense called a limited warranty. But the general contractual purpose is that of an exclusion of warranties or, as the English Judges in similar cases have called it, a "barring clause." It must be remembered that, since 1893, there has been accepted by statute in Scotland the general overruling doctrine that caveat emptor.Even as all along accepted in England, it was also judicially made the subject of a few recognised exceptions, and these, again, are fully and sufficiently formulated for Scotland in the Scottish applicable sections of the code. The rule as to conditions and warranties for Scotland is contained in the fasciculus contained in "Conditions and Warranties," sections 10-14, and in the last two parts of the Interpretation of Terms Clause, section 62. I think the latter comes first. "Warranty" is expressly defined for England and Ireland as—"an agreement … collateral to the main purpose." As such, its breach is subjected to a claim for damages, but does not warrant rejection if the subject does not come up to the warranty. But e contra, in Scotland, "A breach of warranty shall be deemed to be a failure to perform a material part of the contract." Now, I run over the five substantive sections. The 10th section deals with when a stipulation as to time is a material part of the contract. The 11th provides, subsection (1), for England and Ireland, when a condition of the sale may be reduced to the status of a warranty. Of course, that does not and cannot ever apply to Scotland, but subsection (2), which I do not quote in full, provides that failure to perform any material part of a contract (including warranty as defined in the interpretation clause) gives both the alternative remedies. Section 12 refers to implications as to title. And two "implied warranties" fall thereunder as well as an "implied condition." Section 13 is the case upon which, in my opinion, the present dispute must be argued:

"Sale by Description."

—"Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description." Lastly, section 14 deals with certain other implications under the headnote, "Implied conditions as to quality or fitness." Four subsections appear, and sometimes the matters are described as "implied conditions" and sometimes as "implied warranties," also in the English sense. In my opinion, all such cases for Scottish law fall to be read as if the words "the implied warranty or condition" were present, and as if these two, warranty and condition, were indistinguishable concepts in Scottish law.

Applying the matter to the present case, the buyer who has accepted the goods and has dealt with them so that they cannot be restored, and who wishes to enrich himself by damages to about forty times the whole stipulated price, has not pled any one of the implied warranties or conditions of section 14 as a specialty in his case. There was some late effort to speak of a warranty of fitness to serve a stipulated purpose of cabbages saleable for consumption in the late winter or spring. It is quite clear that neither in the pleas in law nor in the argument before the Lord Ordinary, nor in that before us, are these very special implied warranties founded upon. The only possible recourse therefore for the unfortunate farmer in the present case would be upon the implied condition which arises upon sale by description. Now, the law on this matter is correctly summarised in the Scots Encyclopædia under "Sale of Goods," at par. 204:

"Where there is a contract for the sale of goods by description there is an implied condition that the goods shall correspond with the description. In sales by description there is no implied warranty of quality or fitness, except in purchases from a seller who deals in goods of that description, that they shall be of merchantable quality. If the description of the article indicates its purpose it must also be fit for the purpose."

The compiler of the article also states in general terms that all the conditions and warranties including the statutory warranties may be excluded by contract. These propositions are clearly documented, and I proceed on that footing. Has the fourth condition to which I have reverted excluded the implication of section 13 of the Act? In my opinion, it very clearly has succeeded in contractually excluding that implication. Messrs Miln & Company give no warranty express or implied as to description, quality, productiveness, or any other matter. I do not think the word "quality" has much place here, but I think that the other three words have great place, to wit, "description," "productiveness," and "any other matter" connected with seeds. The exclusion of warranty is not quite total, because it says "beyond analyses required in accordance with the Seeds Act, 1920, and Regulations." That, to careful reading, the clause protected the seller against cabbage seeds turning out to grow into cabbages—edible indeed—but, subject to earlier or later growth, or to producing an earlier or a later crop, is made manifest by the remaining partsentence by the sellers:

"nor will they in any way be responsible for the crop."

And they add, "it must therefore be clearly understood that if the purchaser does not accept the goods hereby invoiced on these terms, they are at once to be returned." In my opinion, any farmer who sowed out, and thereafter planted out, seeds accepted upon these terms is bound down to the protective clause according to its true meaning. In my opinion, that meaning is almost beyond argument—that description, productiveness and responsibility for the crop produced are all excluded from any warranty, whether express or implied. It is, in these circumstances, and on this alone, that it is necessary to have recourse to the authority of Smith v. Waite . I agree as to the application of that case to the present circumstances with your Lordship and with the Lord Ordinary. All I might be

permitted to say is that his passage reads as if he applied it with a certain reluctance. I personally should have arrived at the same conclusion, looking to the terms of the Sale of Goods Act of 1893, whether driven to it by high authority, or whether left to ordinary interpretation of terms. I do not think the reclaimers in any way succeeded in attacking either the reasoning of the First Division consisting of Lord President Inglis, Lord Adam and Lord Kinnear, or in distinguishing the present case. The Lord Ordinary, Lord M'Laren, says (at p. 536), "I have stated the principle on which I think this question is to be determined. … The Tankard turnip is, from the farmers' point of view, a thing specifically distinct from the Scotch green top yellow in these particulars that I have named." These were ingenious reasons, but they did not, in the unanimous opinion of the Division, suffice to get rid of the exclusion of warranty clause, which excluded any warranty for description. If Lord M'Laren's doctrine had been accepted, there would, in my opinion, have been no end to the disputes in the case of seeds and seed potatoes which would have eventuated, because his principle obviously is that such a refusal to warrant or to make a condition of contract does not apply unless it can be held that the seed of one sort was "identical" with the seed of the other. Were that so, then I think the clause would add nothing whatever to the ordinary common law of sale.

What remains of the elaborate proof about the mode of propagating or fertilising cabbages, and the nature of the crop that came up? In my opinion, practically nothing. If, no doubt, it had been proved that from the same four pounds of seed there had emerged a crop, half thistles or half runner beans, or something of that sort, the exclusion of warranties clause might conceivably not have protected. But in my opinion, the proof, such as it is, is totally to the opposite effect. Seeds, at the time when they are sold to the market gardener or farmer for the preliminary sowing, preceding by a month or two the ultimate planting out, are, it is admitted, not distinguishable by eye or any test ordinarily or properly applied—that is to say, you cannot distinguish an early variety from a late variety by inspection; nor (for there are such varieties) an early savoy variety for early eating from a late savoy variety for winter eating.

I must touch on a proposition of the reclaimers already adverted to once or twice. That is the suggestion that a savoy "is not a cabbage" or, at least, is not a cabbage within the commercial or farming sense. They founded that, as it turned out, entirely upon one or two sentences in the evidence of J. I. Stubbs, a very expert grower who was examined as expert witness for the defenders. Now, no doubt, very early in his evidence that witness was led, rather than testified himself, in a method which seemed to distinguish "cabbages" on the one hand and "Savoys" on the other hand. And in one passage in a single sentence in examination in chief he states:

"Savoys are quite different from cabbages."

Even upon this witness's testimony, however, it is only fair to remember that he was being adduced to speak upon a record which contained no suggestion of this vital distinction as to two saleable commodities commercially different. Moreover, the whole purport of his testimony makes it clear he was only speaking in short terms for greater convenience. Over and over again in the course of his testimony he accepts the view that the distinction in question is that between two varieties. I am also perfectly convinced that neither Harries, adduced for the pursuers, nor Rutherford himself, took this distinction, or ever had any opinion that a plant suitable for putting on the table as a cabbage vegetable in late winter was not a cabbage. I have quoted the words in which Harries gave the stages in the formation of the contract, and at every stage the sort desired was described as a variety of cabbage. One of the two invoices contains the word "cabbage." And every dictionary I have been able to consult gives, under the word "Savoy," the definition, "A variety of cabbage." I take, for instance, Chamber's Dictionary, which perhaps illustrates best the Scottish usage. The result, in my opinion, is that this artificial mode of opening the case is wholly outside the true import of the evidence as a whole.

Such being the construction of the contract and the application of the law of contract to the facts of this case, I think the opinion of the Lord Ordinary cannot be displaced. We were asked by both parties, and at some length, to go into the question on the facts as to how far untrue plants were the result of the productiveness of these seeds after sowing. I do not think it falls to me, upon the view on contract and on the law which I have taken, to express any opinion upon the Lord Ordinary's conclusion. What I would say is that I was strongly impressed with the idea that the Lord Ordinary had misunderstood, in large part, the attacks upon the crop produced. It would be tedious and unnecessary to do more than give the slightest indication of the grounds of that opinion. It is, however, this: that the Lord Ordinary has been a little misled by the constantly recurring phrase "true Savoys"; and that he has formed the impression that an average crop in average years should, not certainly produce 100 per cent true savoys, but should show something like 90 per cent true savoys which reach a full stage of full heart and crinkled leaf. On the other side, he seems to accept views from a number of practical farmers—and Harries himself—as if he understood them as saying that something approaching 90 per cent were rejectable on the ground that they were not true savoys. In my opinion, looking to the evidence about fertilisation and how it is affected by the bee, together with a certain proportion of hermaphrodite production, it would be a complete mistake to assume or to assert that every proportion, in the produce of four pounds of seed, greater than 10 per cent of plants not "true Savoys" would necessarily be a breach of contract. I may add that the findings in fact pronounced by his Lordship do not go beyond saying that a proportion were "hybrids." Personally I am inclined to doubt whether proper spring cabbage seeds planted out in July would grow at all. But I have done enough to indicate that, to my mind, it is not at all certain that there was a grave breach of contract or failure of description in this crop, even apart from the protective clause.

As I have said, I am clearly of opinion that the protective clause applies, and that it does exclude any error in description and productiveness that occurred. For these reasons I concur that the interlocutor of the Lord Ordinary should be adhered to.

LORD JAMIESON .—The contract in this case was for the supply of savoy seed, and was one for the sale of goods by description. The Lord Ordinary has held that the pursuers have proved that the crop produced therefrom did not consist of true savoys, but was a mixture of savoys, cabbages and hybrids. I agree with him in thinking that the evidence establishes that, and that substantially the seed supplied did not correspond with the description. But he has assoilzied the defenders on the ground that, so far from there being any implied warranty that the goods should correspond with the description, any such warranty was expressly excluded by the terms of the contract. The contract was made verbally, but the invoice contained printed conditions. Your Lordship has already quoted the material parts of them. Now, if these conditions formed part of the contract, I think the case is ruled by Smith & Son v. Waite, Nash & Co . An attempt was made to distinguish that case on the ground that here there had been a complete breach of the contract, in respect that the defenders had furnished a totally different article from that contracted for, but that argument, in my view, fails on the facts. The evidence does not, I think, establish that a savoy is commercially an entirely different commodity, or botanically an entirely different plant, from a cabbage. On the contrary, while it possesses distinguishing characteristics and is grown for marketing as a winter, as opposed to a spring or summer, vegetable, it is merely a kind or species of cabbage. What the pursuers were supplied with was cabbage seed, although not corresponding to the description ordered.

It was maintained, however, that the exclusion of warranty condition did not apply for two reasons. In the first place it was said not to have been incorporated in the contract, in respect that the invoice did not reach the pursuers till some days after the seed was received, and indeed till after it had been sown. If this had been an isolated transaction there would have been force in that argument, but there had been previous transactions between the parties, and Mr Rutherford admits that he knew he was giving the order on the defenders' usual terms of business. If he had not troubled to ascertain these terms from previous invoices, sibi imputet.

The other argument was based on a construction of the terms of the condition, and was to the effect that the exclusion of warranty was limited to seeds grown, selected and cleaned by the defenders themselves.

In my opinion the opening words of the condition are merely a representation that care is taken by the defenders when they themselves carry out these processes in connection with goods they supply, but it does not detract from the generality of the exclusion of warranty as to description, quality, &c., of seeds supplied by them.

Accordingly, in my view, the defenders were protected by the terms of their contract, and were rightly assoilzied by the Lord Ordinary.